Teen can't get death penalty, in light of a bar on executing juveniles

HAMPTON — At the Woodland Skatepark in Phoebus, on Woodland Road near East Mercury Boulevard, kids often ride skateboards among some small ramps.

Still others, like Donivan K. Walker Jr., 21, and Kenneth Jake Wilson, 20, both former Hampton High School students, would test their skills on the ramps with their BMX racing bikes.

But in the late afternoon on Dec. 31, a 16-year-old Hampton boy argued with Wilson and Walker over some bicycle parts, their friends say. Then, police say, the 16-year-old left, came back with a gun and opened fire on Walker and Wilson, leaving them both dead of multiple gunshot wounds.

According to police, the 16-year-old fled on a moped and carjacked a Jeep Liberty on Newton Road. Police found the fleeing vehicle a short time later and gave chase, pulling the teen over at a marina near the VA Medical Center about 20 minutes after the shooting.

The next day, police charged the 16-year-old with first-degree murder in the first killing, and capital murder in the second. Hampton's top prosecutor, Commonwealth's Attorney Anton Bell, approved the charges, marking the first capital murder case during his 19-month tenure in office.

In fact, Bell said last week that it's the first capital case brought by the Hampton Commonwealth's Attorney's Office in more than eight years — since William Shanklin was charged in the 2005 slaying of 4-year-old Davion Mutts. A Hampton jury spared Shanklin the death penalty, giving him a life sentence instead.

Under the state's capital murder statute, the case qualifies as a capital crime because two people were killed in the same act. Beyond that, Bell would not elaborate extensively on the reason he agreed to the capital murder charge, except to say that the facts of the case are egregious.

"It's the heinous nature of the act," Bell said in an interview Thursday. "I can't comment on the facts of the case right now, but the case will speak for itself when you see the evidence … At that point, you'll see why."

The fact that police say the teen left to retrieve a weapon and came back to the scene "factors in" to the equation, Bell said, but he said it goes beyond that, too. "It's the heinous nature of the overall act," Bell said.

Some facts of the case, Bell said, would become clearer at a probable cause hearing set for Feb. 6 in Hampton Juvenile and Domestic Relations District Court. That hearing will determine if there's enough evidence to send the case to a grand jury in Hampton Circuit Court.

The 16-year-old — who is not being identified at this time because the case is still in the juvenile court system — is charged with one count each of first-degree murder, capital murder, grand larceny of a firearm, carjacking, felony evading and eluding, and possession of firearm by a juvenile, as well as three counts of use of a firearm in the commission of a felony.

But unlike with an adult capital murder defendant, the teen charged in the double-slaying doesn't face the death penalty if convicted.

When an adult is convicted of capital murder, there are only two possible punishments: execution and a life sentence. But if the defendant was younger than 18 at the time of the crime, the only option under the statute is a life term.

In 2005, the U.S. Supreme Court ruled that it's unconstitutional to execute someone who was under 18 at the time of the crime.

That 5-4 decision, Roper v. Simmons, arose out of a Missouri case in which a 17-year-old teen, Christopher Simmons, was convicted of capital murder. The Supreme Court's decision to bar Simmons' execution changed the law in 25 states. That included Virginia, which before that ruling had allowed those 16 and up to be executed.

In coming to the decision in the Roper case, the U.S. Supreme Court relied extensively on its landmark 2002 decision out of York County, Atkins v. Virginia. In that case, states were barred from executing those found to be mentally disabled.

As a result of those two rulings, Virginia's capital murder statute now reads: "If the person was under 18 years of age at the time of the offense or is determined to be mentally retarded … the punishment shall be imprisonment for life" as well as a fine of up to $100,000.

But there's another twist.

In 2012 in another U.S. Supreme Court case, Miller v. Alabama, the high court ruled that it's unconstitutional — a violation of the prohibition against cruel and unusual punishment — to give a juvenile a life sentence without considering an alternative.

"Mandatory life without parole for a juvenile precludes consideration of his chronological age and its hallmark features — among them, immaturity, impetuosity, and failure to appreciate risks and consequences," Justice Elena Kagan wrote in the court's majority opinion. "It prevents taking into account the family and home environment that surrounds him — and from which he cannot usually extricate himself — no matter how brutal or dysfunctional."